Morton SOBELL, Appellant, v. UNITED STATES of America, Appellee.
No. 314, Docket 33029
United States Court of Appeals Second Circuit
Argued Jan. 6, 1969. Decided Jan. 14, 1969.
407 F.2d 180
The reasons for which Playtex chose Gainesville, Georgia, as the place of suit are assertedly (1) because of the location of three of its five plants in that State, (2) because the alleged infringement took place there, and (3) because of the possibility of an earlier trial date in the Northern District of Georgia. It also claims that some of its employees in its Georgia plants will be important witnesses in the action there and that their unique knowledge of the manufacturing process is important to that infringement suit. Playtex contends further that it brought suit in Georgia because of the economic interest in defendant and its employees in Georgia in preserving the substantial volume of business of defendant‘s patented product.
Judge Motley found Playtex‘s reasons for bringing suit against Woolworth in Georgia “not very persuasive.”
The “whole of the war and all the parties to it” are in the Southern District of New York. Kerotest, supra, 342 U.S. at 183, 72 S.Ct. at 221. Woolworth, the defendant in the Georgia action, has consented to be made a party here and is amenable to process here as well. All the litigants involved have offices and principal places of business in New York City. Most of the witnesses whose testimony is relevant reside in the New York City area. Woolworth must look to Gluckin to supply evidence in its defense in the Georgia action. All counsel are from New York and the convenience of the major witnesses would unquestionably be better served by a New York venue.
Balancing the convenience of the parties and witnesses and with due regard to the weight given to the initial forum, a judgment that the Georgia suit should be restrained in order that the New York suit may proceed does not appear to be at all unreasonable.
The decision below is affirmed.
Thomas I. Emerson, New Haven, Conn. (Marshall Perlin, New York City, and David Rein, Washington, D. C.), for appellant.
Stephen F. Williams, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, and Charles P. Sifton, Asst. U. S. Atty., of counsel), for appellee.
Before MOORE, FRIENDLY and HAYS, Circuit Judges.
HAYS, Circuit Judge:
Appellant, Morton Sobell, was arrested on August 18, 1950, and charged with violating the Espionage Act.1 Bail was set at $100,000. Sobell did not post bail and remained in custody until, following his indictment and subsequent conviction,
This action was brought in the United States District Court for the Southern District of New York pursuant to
Appellant advances three reasons for crediting him with the time spent in presentence custody: he is entitled to credit pursuant to
Section 3568 prescribes the method of computing the term of federal sentences of imprisonment. Until 1960 it did not on its face require that any prisoner be given credit for presentence time spent in custody.2 In 1960 Congress, incorrectly assuming that the courts gave defendants such credit as a matter of right except in cases involving minimum mandatory sentences, in which the courts thought they lacked the authority to give
In 1966 the United States Court of Appeals for the District of Columbia Circuit considered the effect of the 1960 amendment on the sentence of a prisoner who, as is the situation with Sobell, was sentenced to the statutory maximum term for an offense which did not require the imposition of a minimum mandatory sentence and who was not given credit for presentence time spent in custody. Stapf v. United States, 125 U.S.App.D.C. 100, 367 F.2d 326 (1966). The court believed that the amendment presented an equal protection problem, since it would be irrational to require that credit be afforded in minimum mandatory sentence cases, which generally involve the more serious crimes, while not requiring it in lesser-offense cases.
Stapf has been followed in Dunn v. United States, 376 F.2d 191 (4th Cir. 1967); United States v. Smith, 379 F.2d 628 (7th Cir. 1967); Bryans v. Blackwell, 387 F.2d 764 (5th Cir. 1967); and Lee v. United States, 400 F.2d 185 (9th Cir. 1968). As a result of those cases the Bureau of Prisons promulgated regulations requiring that all prisoners sentenced to maximum terms be given credit for presentence time spent in custody. However, because each of the cases involved prisoners who had been convicted after the effective date of the 1960 amendment, the Bureau of Prisons’ regulations were limited to those prisoners who were sentenced between October 2, 1960 (the effective date of the 1960 amendment) and September 19, 1966 (the effective date of the Bail Reform Act,
Sobell was sentenced before September 19, 1960. The issue before us is whether he must be afforded credit for the presentence time that he spent in custody. We think he must.
The 1960 amendment makes sense only if we assume that the courts did grant credit except where a minimum mandatory sentence was required. Thus the rationale of Stapf, which upheld the statute against a constitutional challenge by construing it to avoid its seeming irrationality, would require that credit be afforded in pre- as well as post-1960 cases. As the court said in Stapf:
“This is not a case * * * where Congress removed part of an evil but disclaimed action on the rest. This is a case, rather, where Congress acted as to the only evil that required legislative action, and assumed that in all other instances equivalent relief would be provided by the courts. In such context the court acts unlawfully when it effectuates rather than avoids an arbitrary classification.” 367 F.2d at 329-30 (footnote omitted).
That credit should be afforded for sentences imposed before the effective date of the 1960 amendment is also supported by the policy adopted in the Bail Reform Act of 19666 which recognizes that for
To the extent that Stapf and the cases that followed it limit relief to persons sentenced after the effective date of the 1960 amendment, we disagree.8
We are not deterred in our decision to follow Stapf by the remark in United States ex rel. Sacco v. Kenton, 386 F.2d 143, 144 (2d Cir. 1967), that this court “has never adopted the holding in Stapf.” The court in Sacco noted that its discussion of Stapf was “purely academic and of no real consequence.” Id. at 145.
The order of the district court is reversed. Since we are informed by the United States Attorney that crediting appellant with his presentence custody time would entitle him to immediate conditional release, his release from custody is ordered forthwith, subject to the provisions of law governing the conditional release of prisoners.
MOORE, Circuit Judge (concurring):
In my opinion, the decision of this court should not rest upon our 1969 assumption of what we think the various members (over 600) of Congress assumed “incorrectly” in 1960 when they amended
Obviously, the key word of the statute is “sentence.” At the time of sentencing, the following colloquy took place:
“The Court: I, therefore, sentence you to the maximum prison term provided by statute, to wit, thirty years.
While it may be gratuitous on my part, I at this point note my recommendation against parole. The Court will stand adjourned.
Mr. Phillips: [Appellant‘s counsel] Before the Court adjourns, are the months already served taken into consideration?
The Court: No, they are not, but I will have to so sign the judgment. They have to be so considered.”
The judgment of conviction thereafter signed by the district court contained no reference to the seven months which appellant had served prior to sentencing.
The Government argues, and the Court below so found, that the colloquy indicated Judge Kaufman‘s intention merely to consider, not necessarily to grant, the inclusion of the pre-sentence custody into the 30-year sentence. The signed judgment, it is suggested, showed that Judge Kaufman, upon such consideration, decided not to grant the seven-month credit.
To reach this conclusion, in my opinion, would be to ignore the rule that the
It is the oral sentence which constitutes the judgment of the court, and which is authority for the execution of the court‘s sentence. The written commitment is “mere evidence of such authority.” Kennedy v. Reid, 101 U.S.App.D.C. 400, 249 F.2d 492, 495 (1957); see also Pollard v. United States, 352 U.S. 354, 360 n. 4, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). If, as the Government would have it, appellant was sentenced not when he appeared before Judge Kaufman but at some later time when the commitment was signed, the sentence would be invalid since appellant was not present. United States v. Johnson, 315 F.2d 714 (2d Cir. 1963); James v. United States, 348 F.2d 430, 432 (10th Cir. 1965).
It is the duty of this court to “carry out the true intention of the sentencing judge as this may be gathered from what he said at the time of sentencing.” United States v. Morse, 344 F.2d 27, 30 (4th Cir. 1965). I believe that the most plausible interpretation of Judge Kaufman‘s remarks is that he demonstrated a present intention, at the time of the oral sentencing, to give appellant credit for his presentence custody. When asked by appellant‘s counsel whether the presentence months would be “taken into consideration,” he answered that they would “have to be so considered” (italics mine). In this exchange, I interpret the phrases “taken into consideration” and “so considered” to have meant “included in the sentence.”
Certainly, at a minimum, Judge Kaufman‘s words were ambiguous and this Court has said that such ambiguities are to be resolved in favor of the prisoner. United States v. Chiarella, 214 F.2d 838, 841 (2d Cir.), cert. denied 348 U.S. 902, 75 S.Ct. 226, 99 L.Ed. 708 (1954).
Payne v. Madigan, 274 F.2d 702 (9th Cir. 1960), cited by the Court below as authority for the proposition that the signed judgment is controlling where the oral remarks are ambiguous, does not in fact contradict the rule of Chiarella. In Payne, the Court looked to the written commitments only to confirm a sufficiently clear conclusion which had been drawn from the oral pronouncement. 274 F.2d at 704. The Court in Payne did enter broader dictum by stating that written commitments “may properly serve the function of resolving ambiguities in orally pronounced sentences” but this language was not necessary for the decision since the oral pronouncement of the sentencing court was not viewed as ambiguous. The Payne court also recognized that if the sentence as set forth in the written commitment departed in substance from the oral pronouncement, that sentence would be void.
I cannot accept the majority‘s statement that “Section 3658 is properly to be construed as requiring that credit be granted.” This, they say, despite their concession that “Until 1960 it [
Controversy centers around a two-to-one decision in the District of Columbia Circuit. Stapf v. United States, 125 U.S.App.D.C. 100, 367 F.2d 326 (1966). That case has been followed in the 4th, 5th, 7th and 9th Circuits. But concerning Stapf, we said: “This [the Second Circuit] court has never adopted the holding in Stapf.” United States ex rel. Sacco v. Kenton, 386 F.2d 143 (1967).
In Sawyer v. United States, 376 F.2d 615 (8th Cir. 1967), the court neither concurred in nor rejected Stapf. Although it said, “we do not reach this issue,” it wrote by way of dictum that
Furthermore, the court in Stapf explicitly pointed out that “the amendatory act did not apply retrospectively.” 367 F.2d at 330. The reasoning of Stapf, therefore, would apply only to prisoners sentenced after the passage of the amendatory act in 1960, even if that reasoning had been adopted in this circuit. In Williams v. United States, 118 U.S.App.D.C. 255, 335 F.2d 290, 291 (1964), the court said, “[the prisoner‘s] sentence was imposed in 1957, and Congress specifically provided that the credit provision of Section 3568, which became effective October 2, 1960, was not to apply to a sentence imposed prior to that date.”
To Sobell it makes no difference which key unlocks the gates of the prison so long as the gates open immediately. But in defense of the decisional process, I cannot subscribe to the statements that “We accept and adopt the rule laid down in Stapf * * *” and that “We are not deterred in our decision to follow Stapf when we have said within the last fifteen months that we have ‘never adopted the holding in Stapf.‘” The law, ever changing though it be, is at least entitled to a more respectful period of existence.
I conclude, therefore, that appellant must be given credit for his pre-sentence custody but solely on the ground that Judge Kaufman‘s oral sentence so intended.
FRIENDLY, Circuit Judge (concurring):
I concur that appellant should be released both on the ground stated in the opinion of Judge Hays and on the ground stated in the opinion of Judge Moore.
IRVING R. KAUFMAN
UNITED STATES CIRCUIT JUDGE